Legal push continues to have open primary initiative on November ballot

PHOENIX -- An attorney for proponents of the open primary initiative wants a judge to order the measure included on the ballot, even if he decides it does not belong there.

Kim Demarchi told Maricopa County Superior Court Judge John Rea that the back page of the November ballot -- the part with all the initiatives -- has to go to the printer today to meet legal deadlines.

Secretary of State Ken Bennett concluded earlier this month there are insufficient valid signatures on petitions to qualify to be on the ballot. On Thursday, Maricopa County Superior Court Judge John Rea heard arguments by initiative organizers disputing that conclusion.

Rea has promised a ruling today.

But Demarchi said if she loses, she will seek Supreme Court review. And that cannot happen before next week -- after the deadline to send the text to the printer.

So Demarchi said there needs to be an order to have the text sent to the printer today include what would be Proposition 121.

Maricopa County Elections Director Karen Osborne said she would need such an order to ensure that voters could weigh in on the measure if the high court ultimately decides it is entitled to be on the ballot. And she said the order would create no harm -- assuming she get a final Supreme Court order this coming week.

"It's always much, much easier to take an issue off the ballot than to put it one on,' she told Capitol Media Services.

Osborne said it is necessary to send the ballots to the printer today laid out with everything included. She said if the court ultimately decides that the petition drive fell short, the printer can be instructed to pull out that measure, leaving a blank space.

The reverse, she said, is not true,

"It's almost impossible to put one one,' she said.

Osborne said there is a good reason for today's deadline.

"This election ... is not on Nov. 6,' she said.

"It's on Sept. 22 because that's the day we have to be at the post office with more than 3,000 mliitary and overseas ballots,' Osborne explained. More to the point, all the ballots printed, for everyone, "have to have the same information.'

At the first of two hearings Thursday, Demarchi attacked the verification process used by Osborne's office.

Initiative backers turned in more than 360,000 signatures. After some preliminary screening, that left about 358,000.

Under state law, each county then gets a random 5 percent sample to check against voter registration records.

Maricopa County officials said that out of the more than 13,000 given to them, close to a third were invalid. Problems ranged from illegible signatures and signers not registered to vote at the time to situations where it appeared a signature was forged.

That high error rate, coupled with verifications conducted in the other 14 counties, was then extrapolated to the full list. That calculation left the petitions short of the 259,213 necessary.

Demarchi on Thursday sought to have at least 507 of the signatures voided by Maricopa County declared valid. She figures that would be enough, as each signature in the sample equals 20 on the full list.

Tom Milton, the campaign manager, testified that he went back through the list of names that Osborne's staff struck. He said he and others were able to actually find some of the voters.

But Colleen Connor, a deputy Maricopa County attorney, said even if that was the case, that means nothing legally.

For example, Connor said Arizona law requires the signer to fill out the entire line on the petition. That includes not only the signature but the printed name, date and full address.

She said if the signer did not do that, the name cannot be counted.

Demarchi, however, argued that there needs to be only "substantial compliance' with initiative laws.

Even if Rea agrees to add in the signatures Demarchi wants -- and the high court agrees -- it may not matter.

At a later hearing, attorney Michael Liburdi said there is evidence that some of the petitions the Secretary of State's Office accepted were circulated by felons. He got testimony from Jennifer Wright who detailed how she checked specific names using a nationwide database.

Liburdi claims more than 500 petitions were circulated by people found to be felons. And each sheet can have up to 15 names.

Demarchi objected to Wright's testimony, saying certified court records are the only way to determine a specific circulator is a felon. But Rea agreed to allow Wright to explain what she found from the privately run database.

In this case, too, Rea has promised a ruling today. And whoever loses is likely to seek Supreme Court review -- another reason Demarchi wants the court order allowing the measure to be included in the information sent to the printer today.

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